State environmental regulators are arguing that even if the commission that created North Carolina’s first fracking regulations is found to be unconstitutional the work it has done is still valid.
The Department of Environment and Natural Resources makes that argument in a lawsuit brought against the state by an environmental group and a Lee County resident who lives next to land leased for natural gas extraction.
The lawsuit contends that the Mining and Energy Commission was unlawfully constituted because the governor, not the legislature, has the authority to appoint the majority of members on boards and commissions that carry out executive branch functions. The suit, filed in January by the Haw River Assembly and Keely Wood Puricz, seeks to have the fracking regulations the commission adopted in November declared null and void.
The rules took effect in March, and one month later the plaintiffs asked Wake County Superior Court Judge Donald Stephens for a preliminary injunction to halt the rules from going into effect.
Gov. Pat McCrory makes the same separation of powers argument in a lawsuit he filed against legislative leaders, specifically seeking to disband a commission that was formed to develop regulations for the removal of stored coal ash from power plants. The General Assembly had given itself the authority to appoint the majority of its members.
A three-judge panel ruled in the governor’s favor in March, and the defendants appealed. The state Supreme Court will hear arguments in that case on June 30.
Earlier this month, Stephens in effect imposed a moratorium on the state from issuing any fracking permits until the Supreme Court rules in the governor’s lawsuit. No applications for permits have been received yet.
DENR couldn’t defend itself by arguing that the members of the Mining and Energy Commission were lawfully appointed, because that would run contrary to the governor’s lawsuit. Instead, DENR is arguing that even if the courts find the appointments were unconstitutionally appointed by the legislature, the rules it wrote remain valid and enforceable. The agency opposed the request for an injunction against the rules.
In making that argument, attorneys from the law firm of Kilpatrick Townsend, representing DENR, cited a ruling by the state attorney general in 2000.
In that case, then DENR Secretary Bill Holman sought an opinion about whether members of the state Environmental Management Commission could be reappointed to consecutive terms, and whether an unlawfully appointed member invalidated the commission’s work.
Lawyers for the attorney general’s office advised that not only was it legal to reappoint those members, but their work could not be undone even if they were determined to have been unconstitutionally appointed.
“Even if it were found that a commission member holds office unlawfully, actions taken by the Commission during the member's time of service are valid,” the legal opinion said.